Citation Nr: 0319900
Decision Date: 08/11/03 Archive Date: 08/25/03
DOCKET NO. 99-14 533 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUES
1. Entitlement to an increased rating for hypertension
greater than 10 percent prior to December 31, 2002.
2. Entitlement to an increased rating for hypertension with
concentric hypertrophy greater than 30 percent from January
1, 2003.
3. Service connection for post-traumatic stress disorder
secondary to service-connected hypertension.
4. Service connection for stroke secondary to service-
connected hypertension.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
W.L. Pine, Counsel
INTRODUCTION
The veteran had active service from August 1960 to August
1980.
The claim of service connection for post-traumatic stress
disorder (PTSD) on a direct basis has been denied by VA by
rating action of August 1988. VA declined to reopen the
veteran's claim for PTSD on a direct basis in a rating action
of June 1993, and a BVA decision of February 1996. The
current claim for service connection for PTSD has been
developed under the theory that it is secondary to the
veteran's service-connected hypertension.
In his notice of disagreement (NOD) of February 1999, the
veteran disagrees with the denials of service connection for
PTSD secondary to hypertension. In this document, he sets
forth facts and argument consistent with a claim of
entitlement to service connection for PTSD on a direct basis;
he alleges psychically traumatic events in Vietnam and argues
that those events precipitated PTSD. This is an argument for
service connection of PTSD on a direct basis. As noted, VA
has twice denied that claim.
The veteran's argument is not consistent with a claim that
PTSD is proximately due to or the result of service-connected
disease or injury, which is the issue currently on appeal.
The Board does not have jurisdiction to adjudicate the issue
involving direct service connection for PTSD, and it is not
addressed in the instant appeal. The RO has not adjudicated
an application to reopen the claim for direct service
connection for PTSD since the veteran initiated the current
claim for secondary service connection. The apparent claim
for direct service connection for PTSD is referred to the RO
for appropriate action.
REMAND
The Veterans Claims Assistance Act of 2000 (VCAA) made
significant changes in VA's duty to notify and assist
claimants for benefits administered by the Secretary.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West
2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a))
(2002).
The RO's letter to the veteran of November 1998 notified him
of information and evidence necessary to well ground his
claim and trigger VA's duty to assist him in development of
evidence. That notice does not discharge VA's duties under
the VCAA. The Board remanded this case in December 2000,
describing VA's duties under the VCAA, but articulating those
duties does not discharge them whether stated in the Board's
remand, or restated in a supplemental statement of the case,
as was done in February 2003.
VA must notify the veteran of evidence and information
necessary to substantiate his/her claim and inform him/her
which information and evidence, if any, he/she must provide
VA and which information and evidence, if any, VA will
attempt to obtain on his/her behalf. 38 U.S.C.A. § 5103(a)
(West 2002); 38 C.F.R. § 3.159(b) (2002); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). In this case, that means
telling him what he must tell VA to enable VA to obtain
evidence that supports his claim, what evidence VA can get
for him independent of information he provides, and what
evidence VA cannot obtain for him without information only he
can provide.
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d)
(2002). Such assistance includes making every reasonable
effort to obtain relevant records (including private and
service medical records and those possessed by VA and other
Federal agencies) that the claimant adequately identifies to
the Secretary and authorizes the Secretary to obtain.
38 U.S.C.A. § 5103A(b), (c) (West 2002); 38 C.F.R.
§ 3.159(c)(1-3) (2002). For example the veteran referenced
Social Security Administration records in May 1996, and a
March 1992 SSA notice informed the veteran he had been found
disabled. He also has reported he was employed at a VA
Medical Center and referenced VA employee health records.
These are filed separately from ordinary patient records.
The SSA records and the VA employee health records are
government records VA must obtain.
Assistance shall include providing a medical examination or
obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim.
38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4)
(2002).
VA must notify the veteran of a failure to obtain evidence
from any source. 38 U.S.C.A. § 5103A(b)(2) (West 2002);
38 C.F.R. § 3.159(e) (2002).
Regarding the claim for increased rating for hypertension,
the examination reports of record are not responsive to the
rating criteria. See 38 C.F.R. § 4.104 Diagnostic Codes 7007
and 7101 (2002). His ejection fractions are unknown, as is
whether he suffers fatigue, dyspnea, angina, dizziness, or
syncope at a workload between 3 and 5 METS. Moreover, he had
been rated for hypertensive vascular disease, and the RO
changed the diagnostic code to 7007-7101, meaning that an
underlying hypertensive heart disease is being rated by the
criteria for hypertensive vascular disease, see 38 C.F.R.
§ 4.26 (2002) (use of hyphenated diagnostic codes), and then
rated him for hypertensive heart disease.
The criteria for rating diseases of the cardiovascular system
were amended effective January 12, 1998. See Schedule for
Rating Disabilities, The Cardiovascular System, 62 Fed. Reg.
65,207 (Dec. 11, 1997). Under the old criteria, separate
ratings could not be assigned for hypertensive heart disease
and hypertensive vascular disease. This was because the
criteria for rating one condition overlapped with the
criteria for rating the other. See 38 C.F.R. 4.104,
Diagnostic Code 7007 (1997) (including "sustained diastolic
hypertension, diastolic 120 or more" as a rating criterion
for hypertensive heart disease). Under those circumstances,
the assignment of separate ratings violated the rule against
pyramiding. See 38 C.F.R. 4.14. Under the new criteria,
however, elevated diastolic readings are no longer listed as
a criterion for rating hypertensive heart disease.
Accordingly, in cases where the new criteria are being
applied, consideration should be given as to whether separate
ratings are warranted. See, e.g., Esteban v. Brown, 6 Vet.
App. 259 (1994); VAOPGCPREC 23-97.
In an unrelated matter, on April 23, 1996, the RO received
the veteran's notice of disagreement with a rating decision
of May 4, 1995. He requested a statement of the case so he
could prepare his appeal. The RO must "reexamine the claim
to determine if additional review or development is
warranted," 38 C.F.R. § 19.26 (2002), or issue a statement
of the case. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R.
§ 19.26 (2002). Development, if needed, must satisfy the
requirements of the Veterans Claims Assistance Act of 2000
(VCAA), 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002).
In other unrelated matters, the veteran's claims file
contains a VA Form 9 received at New Orleans RO in May 1996,
perfecting an appeal from a December 1995 denial of a claim
for service connection for [residuals of] a stroke secondary
to hypertension. The veteran requested a hearing before the
Board to be held at his local RO. VA has not responded.
Additionally, the veteran filed a NOD, received on April 23,
1996, from a rating decision dated April 25, 1995. A
statement of the case addressing all of the claims addressed
in his NOD has not been issued by the RO.
Accordingly, the case is REMANDED for the following action:
1. Notify the veteran that he must
inform VA of a source of medical evidence
that disability from PTSD is proximately
due to or the result of service-connected
hypertension, which can be evidence that
hypertension caused or aggravates PTSD.
Notify him that VA will obtain any
medical records maintained by VA and the
Social Security Administration, but that
he must authorize VA to obtain any
private records pertinent to his claim or
VA cannot obtain them for him. Likewise,
the veteran must be notified to produce
information about treatment for
hypertensive heart or vascular disease,
and that VA will obtain pertinent federal
records and such private evidence as he
authorizes VA to obtain.
2. Obtain the veteran's VA employee
health records and medical records used
by SSA to reach its March 1992 finding
that the veteran is disabled, any other
federal records of which the veteran
informs VA, and any private records the
veteran authorizes VA to obtain.
3. If development pursuant to instruction
1 results in medical evidence linking
disability from PTSD to hypertension in
any way, and if that evidence is
insufficient to decide the claim, then
schedule the veteran for a VA examination
to obtain a medical opinion clarifying
the relationship between PTSD and
hypertension. See 38 C.F.R.
§ 3.159(c)(4) (2002).
4. Schedule the veteran for a VA
cardiovascular examination to conduct the
tests and perform the measurements
necessary to determine whether he has
both hypertensive vascular disease and
hypertensive heart disease, and if so to
evaluate the signs and symptoms, i.e., by
measurements of blood pressure and by
testing and measurement of cardiac
ejection fraction and work load in METS
at which he experiences dyspnea, fatigue,
angina, dizziness, or syncope.
5. Schedule the veteran for the Travel
Board hearing he requested on the May
1996 substantive appeal from the October
1995 denial of service connection for a
stroke secondary to service-connected
hypertension, to be scheduled in the
order in which the appellant's request
for such a hearing was received at the
RO, in accordance with 38 C.F.R. § 20.704
(2002).
6. Respond to the veteran's NOD of April
23, 1996, which disagreed with the May 4,
1995 notice of rating decision, 38 C.F.R.
§ 19.26 (2002), insure complete
compliance with the VCAA. 38 U.S.C.A.
§§ 5102, 5103, 5103A (West 2002),
38 C.F.R. § 3.159 (2002), and issue an
SOC, 38 C.F.R. §§ 19.29, 19.30 (2002);
Manlincon v. West, 12 Vet. App. 238
(1999). NOTE: the decision on this claim
may not be announced in an SSOC.
38 C.F.R. § 19.31(a) (2002).
7. Readjudicate the claims at issue. If
any part remains
denied, provide the appellant and his
representative an appropriate
supplemental statement of the case and an
appropriate period to respond.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The appellant need take no
further action until he is further informed. The purpose of
this REMAND is to obtain additional information and to afford
due process. No inference should be drawn regarding the
final disposition of the claim because of this action.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs
to provide expeditious handling of all cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.
_________________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).